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Interstate Concealed Carry

HR 822, the National Right-to-Carry Reciprocity Act of 2011, is wending its way through Congress this week, and as one might expect with a gun-law bill, there is some controversy attached. Much of the discussion centers on whether this is this a 2nd Amendment or a 10th Amendment issue: which should hold sway. I suggest that it’s not either/or; it’s both.

For completeness’ sake, these two Amendments are quoted below.

2nd Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

These are short, sweet, to the point, and crystalline in their meaning. Every American is authorized to possess (and so to use) firearms; the Federal government cannot interfere with that. Every State has the sole authority to set the conditions under which this right can be exercised; the Federal government cannot interfere with that, either. The NCRCA simply makes clear the lack of conflict between the two Amendments.

(Indeed, one could, based on the 2nd and 9th Amendments, call into question the Federal government’s Commerce Clause regulation of interstate trafficking of firearms, but that’s an argument for a different thread.)

Much of the argument against the bill centers on the premise that the NRCRA will trample on states’ rights as guaranteed by the 10th Amendment, potentially to the destruction of the Federalism principles of our country. Each State should be able to set its own laws regarding gun possession and how they are to be moved about within the boundaries of that State—including guns brought in from other States. Those arguing for the bill insist either that we need to cure the patchwork of gun control laws and have a single, national law, or that, as Congressman Charlie Bass (R, NH) puts it, “The fact is, we have a tradition in this country of upholding other states’ laws [and] allowing them to apply in other states.”

All of these arguments are bogus. Congressman Trent Franks (R, AZ) draws a useful analogy: “It’s kind of like having a driver’s license. There are some states that have stricter driving laws than others.” Now certainly the analogy breaks down pretty quickly: no one has a Constitutional right to own cars, with its inherent right actually to use those cars, while all of us have a Constitutional right to own firearms, with its inherent right actually to use those firearms. However, the analogy serves well as far as it goes.

Each State, does in fact, set its own conditions for obtaining a driver’s license, including the level of training that must occur, who is authorized to conduct that training, even the driving conditions under which that training occurs (compare, for instance a license obtained in Wyoming, with its level of urbanization and traffic density, with a license obtained in Rhode Island or New York City). Every other State must honor that issuing State’s license. Each driver, though, must honor the driving laws of the State in which he drives—he cannot carry his issuing State’s laws with him to another State.

So it is with the NRCRA. Each State, under this bill, sets its own conditions for obtaining a concealed carry license, including the level of training that must occur, who is authorized to conduct the training, and the conditions under which that training occurs. The NRCRA also is quite clear about the gun owner’s obligation when he’s carrying his firearm in another State. The Congress’ summary of the bill says this (the text of the bill itself can be found here) [emphasis added]:

[The bill will] authorize a person who is carrying a government-issued photographic identification document and a valid permit to carry a concealed firearm in one state…to carry a concealed handgun…in another statein accordance with the restrictions of that state.

There is no Federalism threat here. And just as it’s on the motorist to know the driving laws, or the boating laws, or the hunting laws, or the you-name-it laws of the State in which he’s doing those things, so it is the obligation of the gun owner to know the relevant laws of the State in which he’s carrying and using his firearm.

On the question of “curing” a patchwork of laws, this is a simple Sophistry. We have a patchwork of State-level laws in nearly every milieu—this is, in fact, what Federalism is all about. Looking to our driver’s license analogy, again, here is a prime example of a patchwork of laws. The speed limits on the state highway systems and in the several residential zones, for instance, vary wildly. Indeed, it’s necessary to consider whether a drive to cure such patchworks is, itself, the greater threat to our federal system of governance.

Finally, concerning the argument that there is a tradition of “allowing [one state’s laws] to apply in other states,” what’s “applied” are permitting and licensing laws, not laws governing their use. Illinois “applies” my driver’s license, but it “applies” its own driving laws. Indeed, many of the licensing requirements aren’t even set by the States, but by the relevant guilds: medicine and law, for instance. It is only within these guild boundaries that the States then set their own licensing and operating conditions. And so on.

This is a bill that clarifies the relationship between two Amendments; there is no conflict here.